Toughening the law

Mumbai attacker Ajmal Amir Kasab at the CS TerminusThe UPA government dithered over strenthening the law dealing with terrorists but after the Mumbai attacks it swiftly readdressed some of the anomalies. Parliament has passed the National Investigation Agency Bill 2008 and amended the Unlawful Activities (Prevention) Act (UAPA) with a broad unanimity. The amendments may put some breeze on the back of law enforcement agencies but we still lack a comprehensive legal framework to defend against, prevent and punish terrorism. Our laws still, it seems, are a step behind the terrorists’ parade.

The two acts have many common provisions as the Prevention of Terrorism Activities Act (POTA) which was repealed in 2004. Like the POTA, the new laws ensures that the terror suspects can be held without charges for up to 180 days and police custody can be stretched up to 30 days.

But at the same time, the new laws also make a maiden reference to use of radioactive, nuclear or other substances for terrorist activities. In the Rajiv Gandhi assassination case, the Supreme Court held that it was difficult to establish that the assassination was carried out with a plan to ‘overawe the state’ as stated under TADA. UAPA revisits the issue by defining terrorist act as attempt to “overawe by means of criminal force or causing death of any public functionary”.

The National Investigative Agency (NIA) set up with much fanfare needs to be strengthened to meet the new challenges. Armed with powers only to investigate terror cases, the fangless body is at risk of being reduced to a glorified police force, not much different from a special cell of Delhi Police or an Anti-Terror Squad of Mumbai. The NIA should be given charge of investigating all terror-related activities like funding, hawala transactions, fake currency, drug trafficking and misuse of communication equipment like the internet and satellite phones.

However, the national mood that existed while Parliament legislated the new terror law withered away when various BJP-run states came out against NIA saying that it was against the principles of a federal state. Gujarat Chief Minister Narendra Modi said that the setting up of the NIA was “an attempt at sidetracking” the states in the fight against terror. Incidentally, even the CPI(M)-run Government in Kerala joined Modi in attacking the Centre.

While implementing our policies and setting up plank to fight terrorism, we should achieve both the coveted goals of liberty and security to an appreciable degree. There are at least two differences in the amended UAPA which bring both bouquets and brickbats from civil rights and legal activists.

Unlike in POTA, UAPA does not admit confessions before a police officer as an evidence. Secondly, while POTA required the courts to take certain evidence as “adverse inference” against the accused with possession of arms, UAPA directs the court to presume the accused as guilty unless proved otherwise. Also, POTA provided for review committees to assess each case; this safeguard against misuse is missing in the new UAPA.

Many are of the opinion that the Government’s claim that at no point it will impinge on the civil liberties of the citizens rings a hollow sound. Amnesty Inter-national has appealed to President Pratibha Patil not to approve the legislation, which would double the number of days police can detain terror suspects before filing charges, from 90 days to 180. “Security concerns should never be used to jeopardise people’s basic human rights,” says Madhu Malhotra, Asia Pacific Programme Deputy Director at Amnesty International.

POTA VS UAPA: THE UNRESOLVED DEBATE

Issue

POTA*

UAPA and NIA**

Definition of terrorism Act

POTA made a major change to the definition by substituting ‘with intent to overawe the government’ with the phrase ‘with intent to threaten the unity, integrity, security or sovereignty of India’

Widening the scope further, the definition now includes offences related to radioactive or nuclear substances and even attempts to overawe state or public functionaries

Powers of detention

Chargesheet needs to be filed in 180 days. Hence accused can be held without bail for that period

Chargesheet needs to be filed in 180 days but court can limit detention to 90 days

Presumption

Court to draw adverse inference if arms recovered from the accused or his fingerprints are found at the site of the incident

More stringent as the UAPA directs the court to presume the accused guilty in these cases unless proved otherwise

Confession

Confessions before a police officer would be admissible as evidence

Confessions before a police officer would not be admissible as evidence

Though the Government’s decision to make confessions made to police as admissible has come under stiff resistance from the BJP, the rights activists say it is a move in the right direction. The opponents of this move argue that while the Government is using Kasab’s confessions and telephone intercepts as an evidence to implicate Pakistan, his confessions are not valid in Indian courts.

The flaws within the Indian police system allow torture to routinely happen and it often casts doubt on the confessions made voluntarily. In the UK, where confessions to police are admissible provided they are not coerced or induced, the question of admissibility is decided in a separate ‘mini trial’ within trial.

Only the confessions that fall under elaborate judicial principles are admissible in the trial. Even in the US, any confessions made in violation of procedure and made under duress are not admissible.

The danger associated with allowing police concession is that it incentivises police complacency and bad investigation. The confessional statement often becomes the piece de resistance of the police case and works as an excuse to ignore the need for collecting other evidence.

This calls for a need to extensively reform the police force which relies on scientific investigation and evidence collection methods instead of coerced confessional statements which can be retracted in the court of law. If we make steady progress in police reforms, we can effortlessly incorporate provisions allowing confessions made in custody as evidence under an oversight mechanism.

ACTION PLAN

CONFESSIONS made before a police officer, SP or above, should be admissible as evidence in court with adequate safeguards and oversight committee

NO presidential pardon for those awarded death penalty in terror cases

GOVERNMENT should ensure that while implementing anti-terror laws the principles of federal polity are not infringed upon

THE NIA should have been armed with powers of both the CBI and the IB, something along the lines of FBI in the US

ANTI-TERROR law should have provisions for monitoring telephones and e-mails, regulating financial transactions to cut off illegal inflow of funds for terrorist activities

PROVISIONS have to be backed by a comprehensive witness protection programme to ensure safety and security of the witnesses